Clean Water Act Regulation and the Fight Over WOTUS

By Courtney C. Smith and Jim D. BradburyJames D. Bradbury, PLLC

Clean Water Act (CWA) regulation is one of the most significant environmental issues facing agricultural producers. At the crux of this regulation is the question of what water is regulated by the CWA. The answer lies somewhere within the meaning of “waters of the United States” (WOTUS).

The definition of WOTUS has been in transition since the U.S. Supreme Court handed down its landmark opinion in U.S. v. Rapanos, which addressed jurisdiction over navigable waters and what constitutes a WOTUS. In 2015, the Environmental Protection Agency (EPA) and Army Corps of Engineers (ACE) issued a new rule attempting to clarify protection under the CWA for streams and wetlands. This new rule sparked lawsuits nationwide, including lawsuits in Texas. Injunctions were issued staying the applicability of the rule.

Earlier this year, EPA announced a new rule extending the applicability date of the rule to Feb. 6, 2020, hoping to provide time to repeal and replace the rule before it goes into effect. In August, however, a federal judge in South Carolina issued a nationwide injunction of the February 2020 WOTUS applicability rule, thereby making the 2015 WOTUS rule immediately effective in 26 states.

This put Texas back under the WOTUS rule. Other states are protected by injunctions staying the applicability of the rule pending the resolution of litigation. On Sept. 12, however, the federal district court in Galveston issued a preliminary injunction in the cases pending before that court regarding the 2015 WOTUS rule. The preliminary injunctions stay the application of the 2015 WOTUS rule in Texas, Louisiana and Mississippi until final resolution of the case.

Notably, the Court declined to issue a nationwide injunction reasoning “the evidence before the Court is insufficient to establish whether implementation of the Rule presents an irreparable harm to those States not party to this litigation.” Such an injunction would have countered the August 2018 injunction issued by the South Carolina judge making the 2015 rule effective in 26 states.

The future of the 2015 WOTUS rule and CWA regulation remain in question as these cases proceed.